Hicks v. Palmer

Filing 9

ORDER Granting in Part 8 MOTION TO EXTEND Time and for Leave to Amend and Extending Briefing Schedule. Petitioner's Supplemental Brief due by 8/19/2016; Respondent's Answer and State Court Record due by 10/18/2016; Petitioner's Reply (if any) due by 11/17/2016. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JONATHAN HICKS,
Petitioner,
Case Number 15-14334
Honorable David M. Lawson

v.
CARMEN PALMER,
Respondent.
_______________________________________/

ORDER GRANTING IN PART MOTION TO EXTEND TIME AND
FOR LEAVE TO AMEND AND EXTENDING BRIEFING SCHEDULE
On December 14, 2015, petitioner Jonathan Hicks, presently confined at the Michigan
Reformatory in Ionia, Michigan, filed a pro se petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. In his petition, Hicks challenges his state convictions for two counts of second-degree
murder, one count of being a felon in possession of a firearm, and one count of possession of a
firearm during the commission of a felony (felony firearm). The trial court sentenced the petitioner
to two years in prison for the felony firearm conviction, followed by concurrent terms of 40 to 60
years in prison for the two murder convictions, and four to eight years in prison for the felon-inpossession conviction.
On direct appeal, the petitioner raised ten claims in the Michigan Court of Appeals and an
additional claim in the Michigan Supreme Court. The Court of Appeals affirmed the petitioner’s
convictions, see People v. Hicks, No. 297058, 2012 WL 6604648 (Mich. Ct. App. Dec. 18, 2012),
and on June 25, 2013 the Michigan Supreme Court denied leave to appeal, see People v. Hicks, 494
Mich. 870, 832 N.W.2d 206 (2013).
On June 13, 2014, the petitioner filed a motion for relief from judgment in which he raised

several more claims. The state trial court denied the petitioner’s motion, see Op. & Order (Ingham
Cty. Cir. Ct. March 31, 2015), and the Michigan Court of Appeals denied leave to appeal the trial
court’s decision, see People v. Hicks, No. 328059 (Mich. Ct. App. Aug. 26, 2015).
On December 14, 2015, the petitioner filed the present petition, which raised anew all of the
nineteen issues that he presented to the state courts. He indicated in his original petition that his
application for leave to appeal then was pending in the Michigan Supreme Court, and he sought a
stay of the proceedings in this case pending a decision by that court and the resolution of a
contemplated petition for a writ of certiorari in the United States Supreme Court. He also sought
leave to amend his petition after exhausting his state court remedies. See Pet. at 6-7.
On January 14, 2016, the assigned magistrate judge ordered the State to file a response to
the habeas petition by July 11, 2016. However, on March 8, 2016 the petitioner filed a motion for
an extension of time to file an amended petition. The petitioner asserted in his motion that the
Michigan Supreme Court denied leave to appeal on December 22, 2015, but that his motion for
reconsideration still was pending in the state supreme court. He sought an additional six months to
research the application of federal law to the issues raised in his petition, to “weed out” some of the
nineteen grounds for relief that he had asserted, and to file an amended petition and supporting brief.
See Mot. to Extend Time and For Leave to File Am. Pet. [dkt. #8].
The Michigan Supreme Court’s docket indicates that it returned to the petitioner by postal
mail an untimely filed motion for reconsideration on January 14, 2016. See Record of Proceedings,
Docket Entry No. 21, People v. Hicks, No. 152469 (Mich. Sup. Ct. Jan. 14, 2016), at
http://courts.mi.gov/opinions_orders/Pages/CaseInquiry.aspx. When he filed his motion to extend
time and for leave to file an amended petition, the petitioner indicated that his motion for

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reconsideration was the only matter left pending before the state courts. That motion was rejected
without adjudication, and no further proceedings after January 14, 2016 are evident from the docket
of the state supreme court. It therefore appears that the state courts’ review of the petitioner’s claims
has come to an end. Furthermore, the petitioner is not required to apply for a writ of certiorari in
the United States Supreme Court to satisfy the exhaustion requirement of 28 U.S.C. § 2254(b)(1).
See Wade v. Mayo, 334 U.S. 672, 680-81 (1948); White v. Ragen, 324 U.S. 760, 767 (1945). The
Court therefore finds that there is no reason to stay the proceedings in this matter or to delay the
adjudication of the petition as filed. However, the petitioner indicated a desire to submit some
additional or revised briefing in support of his petition, which the Court will allow.
Accordingly, it is ORDERED that the petitioner’s motion to extend time and for leave to
file an amended petition [dkt. #8] is GRANTED IN PART. The petitioner may file a supplemental
brief, on or before August 19, 2016, for the sole purpose of pointing out to the Court any legal
authority or argument in support of the claims raised in the original petition that were not addressed
in the previously filed brief in support of that petition. The supplemental brief may address only the
claims raised in the original petition and may not raise any new or additional claims. The
petitioner’s motion is DENIED in all other respects.
It is further ORDERED that the State shall file an answer to the petition and any
supplemental brief in support of the petition, as well as the necessary state court record as required
by Rule 5 of the Rules Governing Section 2254 Cases, on or before October 18, 2016.
It is further ORDERED that if the petitioner wants to file a reply brief in support of his

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petition, then he must do so on or before November 17, 2016.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: June 21, 2016
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on June 21, 2016.
s/Susan Pinkowski
SUSAN PINKOWSKI

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